13 Gratt. 523 | Va. | 1856
The sheriff of Randolph county having sold a tract of land in said county on the 24th of September 1850 for the nonpayment of taxes due
A rule in the nature of a mandamus nisi was awarded; to which the County court made return, declining to order the surveyor’s report to be recorded, for causes assigned.
The first, that the deputy sheriff who sold the land was at the time of the sale interested in the purchase; there being an agreement between him and the purchaser that he should have half of the land purchased, and that the purchase was made in pursuance of such agreement. Second, that the report was made by the surveyor on information derived from said purchasers, and does not set out the owners of adjoining lands. And in the third place, that the land had been redeemed by a payment to the clerk of the county, by whom the return does not show, on the 19th of August 1S52 ; and also by a tender to the appellee on the 31st
The Circuit court deeming the return insufficient, awarded a peremptory mandamus ; from which decision the justices have appealed to this court.
The principal questions presented by the record have been settled by the decision of this court in the case of Delaney v. Goddin, 12 Gratt. 266. That case was elaborately argued and maturely considered; and all the judges were of opinion that the authority of the County court was limited to the enquiry whether the report of the surveyor is in conformity with the provisions of the section under which it is made; and if free from objection in this respect, it becomes the imperative duty of the court to order the report to be recorded. And a majority of the court held, that in passing on .such question the County court is vested with no judicial power, but acts in a capacity purely ministerial; and that an error in refusing to order the report of the surveyor to be recorded, can only be corrected by mandamus.
The objections growing out of the alleged complicity of the sheriff with the purchaser, or whether the taxes and damages and cost of survey, where a survey was made, were paid by a party authorized by law to redeem, to the proper party and within the proper time, are matters not appearing on the report or the list of sales, or any thing connected therewith. The proper determination of them would involve enquiries into matters of law and fact, which the County court, acting ministerially and in this ex parte proceeding, cannot, in conformity with the decision in the case referred to, enter into. The survey and report returned by the surveyor describes the land with great particularity, referring to numerous natural ob
I think the judgment should be affirmed with thirty dollars damages and costs.
The other judges concurred in the opinion of Allen, P.
Judgment affirmed.